Texas & P. Ry. Co. v. State, 1827-6313.

• Decision Date: 30 January 1935
• Docket Number: No. 1827-6313.,1827-6313.
• Citation: 78 S.W.2d 580
• Parties: TEXAS & P. RY. CO. v. STATE et al.
• Court: Texas Supreme Court

78 S.W.2d 580

TEXAS & P. RY. CO. v. STATE et al.

No. 1827-6313.

Commission of Appeals of Texas, Section A.

January 30, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Proceeding by the Texas & Pacific Railway Company against the State and others. Judgment for the State was affirmed by the Court of Civil Appeals [52 S.W.(2d) 957], and plaintiff brings error.

Affirmed.

W. A. Keeling, of Austin, and T. D. Gresham and M. E. Clinton, both of Dallas, for plaintiff in error.

James V. Allred, formerly Atty. Gen., and Geo. T. Wilson and R. W. Yarborough, formerly Asst. Attys. Gen., and Clay Cooke, of Fort Worth, for defendants in error.

HARVEY, Presiding Judge.

In this case, the plaintiff in error, the Texas & Pacific Railway Company, claims title, in fee, to its right of way through Ector county. The trial court gave judgment for the state, and the Court of Civil Appeals affirmed that judgment. 52 S.W.(2d) 957.

In the year 1850, and for some twenty-odd years afterward, the western part of the state, for a distance of some five hundred miles, was wild land belonging to the state. The land in this region was unappropriated, unsurveyed, and uninhabited. In the year 1850, the matter of a transcontinental railroad constituted a subject for animated discussion in the halls of Congress and by the public generally throughout the United States. A number of routes for the road were under discussion. One of the routes was commonly referred to as the "Southern Route" which, in its course westward, would cross Texas. On February 9, 1850, the Legislature of Texas adopted the following Joint Resolution:

"Joint Resolution Authorizing the Government of the United States to Construct a National Railroad Through the Limits of the State of Texas, to The Pacific Ocean:

"Section 1. Be it resolved by the Legislature of the State of Texas: That the State of Texas hereby grants and guarantees to the United States the right of way through this State, for a National Railroad, to be located and constructed under the authority of an act of Congress, from the Gulf of Mexico or Mississippi River, to the Pacific Ocean, and hereby authorizes the officers, agents and contractors, acting under an act of Congress for that purpose, to locate, construct, use and control the said railroad; and such railroad may commence at such point in this State on the coast of the Gulf of Mexico, or may enter this State at such point on the eastern or northeastern boundary line of the State, and leave the same at such point on its western boundary as may be determined on by or under an act of Congress. * * *

"Sec. 2. Be it further resolved, that the State of Texas, agrees to extend to the United States all reasonable and proper facilities and co-operation in the construction of said road, and hereby declares that all public lands within one hundred yards of the center of the road, shall belong to and vest in the United States; and all locations, surveys and patents, made on the same, after the road has been definitely laid out, shall be void.

"Sec. 3. Be it further resolved, That should the line of said road commence at any point in this State on the coast of the Gulf of Mexico, or enter this State at any point on the eastern or northeastern boundary south of the thirty-fourth degree of latitude, and leave this State on its western boundary at the town of El Paso on the Rio Grande, or at some point on the said river not farther north than one hundred miles distant from the said town, the State of Texas in addition to the right of way and the grant of lands heretofore guaranteed and declared, doth hereby agree, that all public lands lying within ten miles from the line or one hundred yards from the center of the railroad above granted, shall be divided into sections of six hundred and forty acres each, or some less size when from the nature of the ground such may be more convenient; and that every alternate section shall belong unto and vest in the United States, the said alternate sections to be appropriated to the construction of and for the use and benefit of said road; and the said alternate sections which may under the provisions of this act be allotted to the State of Texas, and all the proceeds arising from the sale thereof shall be, and the same are hereby set apart, reserved and appropriated exclusively for the payment of the public debt of the late Republic of Texas; and all locations made upon the lands herein reserved (after the route of said road has been designated), by virtue of any headright certificate, bounty warrant or land scrip, shall be, and are hereby declared null and void; provided, the expense of laying off the sections and alternate sections, shall be incurred by the United States; and provided further, that if the government of the United States shall not have adopted this route for the construction of the road, by the fourth day of March, 1851, then, and in that case, this resolution shall cease, and have no force or effect.

"Sec. 4. Be it further resolved, That each alternate section is hereby reserved to the State, and shall not be subject to location; but shall be held and reserved to the use of the State, and subject to future disposition by the Legislature.

"Sec. 5. Be it further resolved, That in granting the provisions in this act, they are granted upon the express condition, that the State of Texas reserves the right to construct or authorize to be constructed, any other railroad within her limits which she may deem proper, which may connect with the main track of the railroad to be constructed by the United States, or by its authority.

"Sec. 6. That the Governor of this State is hereby requested to furnish our Senators and Representatives in the United States Congress with a copy of these resolutions." Acts 3d Leg. Tex. (1849-50) c. 124.

The federal government took no action in respect of the foregoing resolution, or of a transcontinental railroad through Texas, prior to March 4, 1851. By Act of Congress approved March 3, 1871 (16 Stat. 573), the Texas Pacific Railroad Company was incorporated, and given authority to construct and operate a railroad to the Pacific Ocean. In said act it was provided: "That the right of way through the public lands be, and same is hereby, granted to the said company for the construction of the said railroad and telegraph line. * * * Said right of way is granted to said company to the extent of two hundred feet in width on each side of said railroad where it may pass over the public lands. * * *" Section 8. A little more than a year later, Congress passed an act changing the name of said corporation to "Texas and Pacific Railway Company." Act Cong. May 2, 1872 (17 Stat. 59).

The company contends that by section 2 of the Joint Resolution of February 9, 1850, a present conveyance of a right of way, in fee, across public lands in Texas, was effected. In this respect, the company contends that the last proviso contained in section 3, which reads: "And, provided further, that if the United States shall not have adopted this route for the construction of the road by the 4th of March, 1851, then, and in that event, and in that case, this resolution shall cease, and have no force or effect," modifies section 3 alone, and therefore did not affect the operation of section 2, as a present conveyance, in fee, of land to be subsequently identified. The contention is based mainly on the fact that each of the sections of said Joint Resolution, including section 3, begins with the words, "Be it further resolved," and on the further fact that in section 6 the term "these resolutions" is used. It thus appears, so the company contends, that section 3 was regarded by the Legislature as a distinct resolution, having no immediate connection with section 2, and therefore the term "this resolution," as used in the proviso, has no reference to section 2. We do not so interpret the legislative intent. It is plain from the caption, and the nature of the general subject with which the Joint Resolution deals, that the Legislature regarded the Joint Resolution as a composite whole, and that the term "this resolution" as used in the proviso in question means such composite whole.

In this connection it does not appear that, previous to the passage of this Joint Resolution, there had been any negotiations between the federal government, or any of its departments, and the state of Texas, regarding the construction of a railroad through Texas. The Joint Resolution appears to have been the voluntary act of the Texas Legislature, unsought by the federal government. Manifestly the Joint Resolution is, in its nature, but a proposal by the state to grant the rights therein specified, on the condition precedent that the route through Texas, for a transcontinental railroad, be adopted by the United States by March 4, 1851. Counsel contends that since the matter of adoption of said route would require such a vast amount of preliminary investigation and work—involving surveys, explorations, reports, etc.—the condition was impossible of performance within the allotted time, and therefore was unreasonable. Perhaps so; but the Legislature had the right to impose such a...